BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 05^TH DAY OF AUGUST 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Direct the OP to make payment of Rs.4,76,000/- to the complainant towards the agreed amount of compensation agreed as per clause 15 of the Construction Agreement dated 28.04.2016.
2. Direct the OP to make payment of Rs.15,00,000/- towards losses incurred due to delay in handing over possession.
3. Direct the OP to pay compensation of Rs.5,00,000/- for deficiency of service
4. Direct the OP to pay compensation of Rs.15,00,000/- for unfair trade practices.
5. Direct the OP to pay arrears of property tax and khata charges of Rs.17,236/-.
6. Direct the OP to refund expenditure of Rs.11,415/- incurred to travel by the complainant.
7. Direct the OP to pay Rs.1,06,000/- for losses incurred due to wrongful deduction of TDS under wrong heads.
8. Direct the OP to make payment of Rs.10,00,000/- to the complainant towards compensation for the mental agony and harassment caused to the complainant.
9. Direct the OP to pay cost of this legal proceedings.
10. Any other relief that this Hon’ble Commission deems fit.

2. The case set up by the complainant in brief is as under:-

The complainant purchased residential flat bearing No.J401 at Kolte Patil Raaga, Kannuru, Bengaluru from the OP under Agreement of sale and construction agreement dated 28.04.2014.  The OP has agreed to hand over the possession by March 2016. However there was a grace period of six months provided by the same clause 13 of the agreement. Hence September 2016 was considered as due date for handing over the possession of the flat.  In May 2016 the OP intimated the delay in completion on upgraded the specification vide email dated 06.05.2016.

3. The OP has informed the complainant in September 2020 that OC in respect of the apartment has been received but however delayed the execution of the sale deed on account of completing the finishing work of the flat.
4. The complainant was constrained to issue legal notice dated 25.08.2021 through her counsel. Thereafter the complainant has visited the Bangalore on 14.10.2021 to get the sale deed executed, but the OP had not have the documentation ready and hence the complainant had to return without execution of the sale deed.  The complainant is liable to pay Rs.11,415/- towards reimbursement of expenditure occurred on travel due to deficiency of services by the OP and also compensation towards harassment and mental agony to the tune of Rs.10 lakhs.
5. It is further case of the complainant that the sale deed in respect of flat was executed on 09.12.2021. However the authorized signatory compelled the complainant to execute a letter dated 09.12.2021. The complainant has paid all the consideration amount and paying EMI in respect of the same and had no option to execute the same due to coercion by the OP and get the sale deed executed.  On 09.12.2021 the OP got executed the letter in the form of an undertaking that this complainant shall not claim any delay penalty towards the delay in possession with the threat that the OP will not execute the sale deed if the complainant refuse to sign the letter.  The OP has also indulged in unfair trade practice and therefore liable to pay an amount of Rs.15,00,000/-.
6. It is further case of the complainant that even after the execution of the sale deed also the OP did not hand over the possession of the flat to the complainant for want of incomplete finishing of the flat and handed over the possession on 18.04.2022.  after which also there was a pending painting due from the OP.  There was a delay of 68 months in handing over the flat. Therefore the complainant is entitle for Rs.7,000 X 68 months = 4,76,000/- towards payment for delay as per clause 15 of the construction agreement.
7. Due to delay of 68 months in handing over the possession the complainant has incurred loss of Rs.15,00,000/- approximately towards rental for alternative accommodation from September 2016 to April 2022.  The OP has taken Rs.7,080/- towards khata charge and Rs.1,00,000/- towards KPTC charges but has not provided service towards khata transfer.  There was an outstanding arrears of property tax of Rs.10,156/- which was to be borne by the OP but the OP did not assist the complainant in khata transfer and also the arrears of the property tax which was also due to the tune of Rs.10,156/-. Hence the complainant is entitled to get refund of Rs.17,236/-.
8. The OP has also deducted an amount of Rs.29,400/- from the part of compensation stating that as TDS for compensation, though there is no such tax on compensation liable to be deducted for such wrongful imposition of TDS of compensation.  The complainant underwent additional loss of Rs.88,200/- due to tax obligation.  Hence amounting to loss incurred due to deficiency in service the complainant is entitled to Rs.1,06,000/- and also entitle to Rs.5,00,000/- on account of deficiency in service. The complainant is totally entitle for Rs.51,10,651/-  with litigation cost of Rs.30,000/-.  Hence this complaint is filed.

9. In response to the notice, OP appears and files version. It is the case of the OP that the complaint is not maintainable and liable to be dismissed. The OP has admitted about the transaction relating to the apartment bearing No.J401 in project Raga Phase II, purchased by the complainant by paying the entire consideration amount. He has further admitted about the sale and construction agreement entered on 28.04.2014 and as per the said agreements the apartment unit has to be completed on or before March 2016 with a further grace period of six months.

10. It is further contention taken by the OP that due to reasons beyond control by the OP the project could not be completed in the stipulated time.  He has sent an email dated 06.05.2016 offering the complainant to swap /transfer her apartment unit from Raaga Phase II to Raaga Phase I with minimum cost or alternatively offered for upgradation to certain specifications to the apartment unit as a goodwill gesture approximately amounting to Rs.2,50,000/-. 

11. The OP has received the OC on 03.09.2020 and the same was immediately informed to the complainant to come for registration. After received the OC the apartment units were ready for occupation.  Even though the complainant is the resident of Bangalore, she has falsely claimed travel expenses and this OP is not liable to reimburse any expenditure.

12. It is further case of the OP that on 07.09.2021 by email the complainant has confirmed the compensation amount receivable to her from this OP and this OP had sent an email on 08.09.2021 response confirming the compensation amount payable to the complainant.  The complainant ahs also requested this OP to adjust delay compensation amount towards balance amount payable after necessary deductions.  After several reminders sent to the complainant, the complainant has come for registration on 09.12.2021 and obtained the registered sale deed.

13. Due to the delay caused by this OP they have entered into compromise letter dated 09.12.2021 for full and final settlement. The complainant despite received benefit of agreement has filed this complaint with ulterior motive to extort huge sums of money and to unjustly enrichment of herself at the cost of this OP. 

14. It is further case of the OP that after registration of the sale deed this OP has made various emails to the complainant to make balance payment towards the last installment so as to hand over the possession.  The complainant has delayed in clearing the balance payment which delayed in handing over the possession. Therefore this OP is nowhere responsible for delay in handing over possession of the apartment.  As per the letter dated 09.12.2021 which clearly states that both the parties are agreeing not to claim anything and the claim of compensation is fully settled. Inspite of that the complainant has filed this complaint claiming compensation. There is no deficiency of service and unfair trade practice.  This OP is agreeable to submit form No.16 regarding TDS deduction to the complainant. This OP has not caused mental agony or trauma to the complainant. The claim made by the complainant is perverse and no basis in law. The complainant cannot misuse the powers vested with this forum to extort huge sums of money from this OP.  Hence the complainant has approached this commission with unclean hands. Hence the complaint is liable to be dismissed and OP prayed for dismissal of the complaint.

15. The complainant has filed his affidavit evidence and relies on 13 documents.  Affidavit evidence of SPA holder of OP has been filed and OP relies on 05 documents.

16. Heard the arguments of advocate for both the parties.   Perused the written arguments filed by both parties.

17. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

18. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

19. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of both the parties, written arguments and documents.
20. It is undisputed fact that the complainant has purchased residential flat bearing No.J401 from the OP at Kolte Patil Raga.  They have entered into sale agreement and construction agreement on the same day on 28.04.2014 as per Ex.P1 and P2.  As per the agreement the OP has agreed to hand over the possession of the said flat by March 2016 as per clause 13 of Ex.P2.  there was a grace period of six months provided by the same clause, hence September 2016 was considered as due date for handing over the possession of the flat.  

21. It is also undisputed fact that in May 2016 the OP has intimated the delay in completion on upgraded the specification as per Ex.P3 i.e., email dated 06.05.2016.  In September 2020 the OP has informed the complainant that they have received the occupation certificate in respect of the apartment.  

22. It is the specific contention taken by the complainant that even though the OP has received the occupation certificate in September 2020 but delayed the execution of the sale deed on account of completing the finishing work of the said flat this complainant has also got issued legal notice as per Ex.P4. Thereafter the complainant has visited the Bangalore on 14.10.2021 but the OP has not executed the sale deed as the documentation was not ready.  The complainant has returned without execution of the sale deed as per Ex.P5.  hence the complainant is claiming Rs.11,415/- towards reimbursement of expenditure occurred on travel due to deficiency of service of the OP and also claiming compensation towards harassment and mental agony to the tune of Rs.10,00,000/-.  

23. It is further undisputed fact that the complainant has obtained the registered sale deed on 09.122021 as per Ex.P6.  It is also the specific contention taken by the complainant that before execution of the sale deed the OP has compelled the complainant to execute the letter dated 09.12.2021 as per Ex.P8.  The complainant has paid all the consideration amount and was paying EMI in respect of the same and had no option to execute the same due to the coercion by the OP and to get the sale deed executed. The Ex.P8 is in the form of undertaking that the complainant shall not claim any delay penalty towards the delay in possession with the threat that the OP will not execute the sale deed if the complainant refused to sign the said undertaking Ex.P8.  The OP has indulged in unfair trade practices and liable to pay Rs.15,000/-.

24. It is further grievance of the complainant that even after execution of the sale deed the OP has not at all handed over the possession of the flat and they handed over the possession on 18.04.2022 by virtue of email as per Ex.P7.  Even after that there was painting work was pending. The OP has made 68 months delay in handing over the flat.  Hence this complainant is entitle for Rs.7,000 X 68 months =4,68,000/- as per clause 15 of the Ex.P2.  In view of this complainant also incurred loss of Rs.15,00,000/- towards rental for alternative accommodation from September 2016 to April 2022.
25. The complainant further admitted about Ex.P10 the email sent by the OP giving the breakup of payment.  As per Ex.P10 the OP has taken Rs.7,080/- towards khata charges and Rs.1,00,000/- towards KPTCL charges but has not provided service towards khata charges and also there was an outstanding arrears of property tax of Rs.10,156/- which was to be borne by the OP.  But the OP has not assisted the complainant in getting the khata transfer and also payment of arrears of property tax to the tune of Rs.10,156/-.  Hence the complainant is claiming the refund of Rs.17,236/-.

26. It is further grievance of the complainant that the OP has deducted an amount of Rs.29,400/- from the part of compensation stating as TDS for compensation.  There is no such tax on compensation liable to be deducted for the wrongful imposition of TDS of compensation. The complainant underwent additional loss of Rs.88,200/- due to tax obligation.  Hence the complainant is entitle for Rs.1,06,000/- towards loss incurred on account of deficiency of service and Rs.5,00,000/- for compensation.  The complainant is claiming totally Rs.51,10,651/- with Rs.30,000/- litigation cost from the OP.  

27. On the other hand, the OP has admitted about the delay in handing over possession of the flat in favour of the complainant. He has clearly stated that he has sent an email on 06.05.2016 offering the complainant either to swap or transfer her apartment unit from Raga Phase II to Raga Phase I with minimum cost or alternatively offered for an up gradation to certain specifications to the apartment unit as a goodwill gesture approximately amounting to Rs.2,50,000/-.  He has received the OC on 03.09.2020 and he has called the complainant for registration of the sale deed.  Despite intimation the complainant failed to respond and later she appeared and obtained the sale deed on 09.12.2021 as per Ex.P7.  She has also entered into compromise letter Ex.R4.  As per the request of the complainant this OP has adjusted the delay compensation amount towards balance amount payable after the necessary deduction. In addition to this the complainant has also delayed in clearing the balance payment which also delayed the handing over the possession to the complainant.  This OP is not at all responsible for the delay in handing over the possession of the apartment.
28. On this back ground we have also gone through the Ex.P9 the letter given by the complainant which clearly discloses that both the parties have agreed not to claim anything and the claim of compensation is fully settled. As per the Ex.R4 the OP has offered the delay compensation ofRs.2,94,000/- to the complainant. As per clause 15 of the construction agreement Ex.P2. That amount also includes 10% of TDS i.e., Rs.29,400/-.  The said compensation amount of Rs.2,94,000/- was adjusted towards apartment balance advance maintenance charges and KPTCL charges of the apartment.  As per clause 4(d) of Ex.P1.  OP has deducted Rs.7,080/- towards khata charges and Rs.2,06,500/- towards maintenance charges.

29. In addition to this the OP has taken the specific contention that the complainant is resident of Bangalore only as per the address furnished in Ex.P1 and P2. Hence the question of paying travel expenses do not arise.  The complainant has also agreed for upgradation of certain specifications to the apartment offered by the OP which approximately costs Rs.2,50,000/- and it was adjusted by the compensation amount offered by the OP.   After all these settlements the OP and the complainant have settled the matter as per Ex.R4 and the complainant was put in possession of the flat. The complainant has taken possession of the apartment as per Ex.P8 on 18.04.2022 after entering into settlement with the OP.  After that the complainant has filed this complaint on 11.12.2023 by claiming compensation of more than Rs.50 lakhs from the OP.  when the complainant has agreed for upgradation of specifications and also entered into ex.R4 the settlement and further agreed to adjust the compensation amount of Rs.2,94,000/- towards balance amount payable by her towards apartment and khata, KPTCL and tax and advance maintenance charges and now she cannot claim compensation of more than Rs.50,00,000/-.  If the complainant is not at all interested or agreed to pay or adjust the compensation amount as per Ex.R4 she would have approached this commission before taking the sale deed from the OP.  When the complainant has agreed for all the settlements and up gradations offered by the OP now she cannot deny all these facts by taking the contention that she was forced to agree for the settlement due to the harassment given by the OP.

30. Under these circumstances the complainant has failed to establish the deficiency in service and unfair trade practice on the part of the OP. therefore the complainant is not entitled for the relief claimed in the complaint.  Hence we answer point No.1 and point No.2 in the Negative.

31. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 05^TH day of AUGUST 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;